Florida Senate - 2018                                     SB 544
       
       
        
       By Senator Brandes
       
       
       
       
       
       24-00618-18                                            2018544__
    1                        A bill to be entitled                      
    2         An act relating to procurement procedures; amending s.
    3         120.57, F.S.; specifying the applicability of
    4         procedures for the resolution of protests arising from
    5         the contract solicitation or award process for certain
    6         procurements by specified transportation, expressway,
    7         and bridge authorities; providing an effective date.
    8          
    9  Be It Enacted by the Legislature of the State of Florida:
   10  
   11         Section 1. Subsection (3) of section 120.57, Florida
   12  Statutes, is amended to read:
   13         120.57 Additional procedures for particular cases.—
   14         (3) ADDITIONAL PROCEDURES APPLICABLE TO PROTESTS TO
   15  CONTRACT SOLICITATION OR AWARD.—Agencies subject to this chapter
   16  or an entity created under chapter 343, chapter 348, or chapter
   17  349 when required by this subsection shall use the uniform rules
   18  of procedure, which provide procedures for the resolution of
   19  protests arising from the contract solicitation or award
   20  process. Such rules shall at least provide that:
   21         (a) The agency shall provide notice of a decision or
   22  intended decision concerning a solicitation, contract award, or
   23  exceptional purchase by electronic posting. This notice shall
   24  contain the following statement: “Failure to file a protest
   25  within the time prescribed in section 120.57(3), Florida
   26  Statutes, or failure to post the bond or other security required
   27  by law within the time allowed for filing a bond shall
   28  constitute a waiver of proceedings under chapter 120, Florida
   29  Statutes.”
   30         (b) Any person who is adversely affected by the agency
   31  decision or intended decision shall file with the agency a
   32  notice of protest in writing within 72 hours after the posting
   33  of the notice of decision or intended decision. With respect to
   34  a protest of the terms, conditions, and specifications contained
   35  in a solicitation, including any provisions governing the
   36  methods for ranking bids, proposals, or replies, awarding
   37  contracts, reserving rights of further negotiation, or modifying
   38  or amending any contract, the notice of protest shall be filed
   39  in writing within 72 hours after the posting of the
   40  solicitation. The formal written protest shall be filed within
   41  10 days after the date the notice of protest is filed. Failure
   42  to file a notice of protest or failure to file a formal written
   43  protest shall constitute a waiver of proceedings under this
   44  chapter. The formal written protest shall state with
   45  particularity the facts and law upon which the protest is based.
   46  Saturdays, Sundays, and state holidays shall be excluded in the
   47  computation of the 72-hour time periods provided by this
   48  paragraph.
   49         (c) Upon receipt of the formal written protest that has
   50  been timely filed, the agency shall stop the solicitation or
   51  contract award process until the subject of the protest is
   52  resolved by final agency action, unless the agency head sets
   53  forth in writing particular facts and circumstances which
   54  require the continuance of the solicitation or contract award
   55  process without delay in order to avoid an immediate and serious
   56  danger to the public health, safety, or welfare.
   57         (d)1. The agency shall provide an opportunity to resolve
   58  the protest by mutual agreement between the parties within 7
   59  days, excluding Saturdays, Sundays, and state holidays, after
   60  receipt of a formal written protest.
   61         2. If the subject of a protest is not resolved by mutual
   62  agreement within 7 days, excluding Saturdays, Sundays, and state
   63  holidays, after receipt of the formal written protest, and if
   64  there is no disputed issue of material fact, an informal
   65  proceeding shall be conducted pursuant to subsection (2) and
   66  applicable agency rules before a person whose qualifications
   67  have been prescribed by rules of the agency.
   68         3. If the subject of a protest is not resolved by mutual
   69  agreement within 7 days, excluding Saturdays, Sundays, and state
   70  holidays, after receipt of the formal written protest, and if
   71  there is a disputed issue of material fact, the agency shall
   72  refer the protest to the division by electronic means through
   73  the division’s website for proceedings under subsection (1).
   74         (e) Upon receipt of a formal written protest referred
   75  pursuant to this subsection, the director of the division shall
   76  expedite the hearing and assign an administrative law judge who
   77  shall commence a hearing within 30 days after the receipt of the
   78  formal written protest by the division and enter a recommended
   79  order within 30 days after the hearing or within 30 days after
   80  receipt of the hearing transcript by the administrative law
   81  judge, whichever is later. Each party shall be allowed 10 days
   82  in which to submit written exceptions to the recommended order.
   83  A final order shall be entered by the agency within 30 days of
   84  the entry of a recommended order. The provisions of this
   85  paragraph may be waived upon stipulation by all parties.
   86         (f) In a protest to an invitation to bid or request for
   87  proposals procurement, no submissions made after the bid or
   88  proposal opening which amend or supplement the bid or proposal
   89  shall be considered. In a protest to an invitation to negotiate
   90  procurement, no submissions made after the agency announces its
   91  intent to award a contract, reject all replies, or withdraw the
   92  solicitation which amend or supplement the reply shall be
   93  considered. Unless otherwise provided by statute, the burden of
   94  proof shall rest with the party protesting the proposed agency
   95  action. In a competitive-procurement protest, other than a
   96  rejection of all bids, proposals, or replies, the administrative
   97  law judge shall conduct a de novo proceeding to determine
   98  whether the agency’s proposed action is contrary to the agency’s
   99  governing statutes, the agency’s rules or policies, or the
  100  solicitation specifications. The standard of proof for such
  101  proceedings shall be whether the proposed agency action was
  102  clearly erroneous, contrary to competition, arbitrary, or
  103  capricious. In any bid-protest proceeding contesting an intended
  104  agency action to reject all bids, proposals, or replies, the
  105  standard of review by an administrative law judge shall be
  106  whether the agency’s intended action is illegal, arbitrary,
  107  dishonest, or fraudulent.
  108  
  109  (g) For purposes of this subsection, the definitions in s.
  110  287.012 apply. This subsection applies to any procurement by an
  111  entity created under chapter 343, chapter 348, or chapter 349
  112  which exceeds the CATEGORY FIVE threshold amount provided in s.
  113  287.017 or if the term of the procurement, including the number
  114  of days specified in the initial contract and the number of days
  115  specified in any authorized contract extension or renewal,
  116  exceeds 365 days.
  117         Section 2. This act shall take effect July 1, 2018.